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Getting to the Rule of Law

Getting to the Rule of Law: NOMOS L

Edited by James E. Fleming
Copyright Date: 2011
Published by: NYU Press
Pages: 308
https://www.jstor.org/stable/j.ctt9qfq0s
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  • Book Info
    Getting to the Rule of Law
    Book Description:

    The rule of law has been celebrated as an unqualified human good," yet there is considerable disagreement about what the ideal of the rule of law requires. When people clamor for the preservation or extension of the rule of law, are they advocating a substantive conception of the rule of law respecting private property and promoting liberty, a formal conception emphasizing an inner morality of law, or a procedural conception stressing the right to be heard by an impartial tribunal and to make arguments about what the law is? When are exertions of executive power outside the law justified on the ground that they may be necessary to maintain or restore the conditions for the rule of law in emergency circumstances, such as defending against terrorist attacks?In Getting to the Rule of Law a group of contributors from a variety of disciplines address many of the theoretical legal, political, and moral issues raised by such questions and examine practical applications on the ground in the United States and around the world. This timely, interdisciplinary volume examines the ideal of the rule of law, questions when, if ever, executive power outside the law is justified to maintain or restore the rule of law, and explores the prospects for and perils of building the rule of law after military interventions.

    eISBN: 978-0-8147-2878-9
    Subjects: Political Science

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. PREFACE
    (pp. ix-x)
    James E. Fleming
  4. CONTRIBUTORS
    (pp. xi-xii)
  5. PART I: GETTING TO THE CONCEPT OF THE RULE OF LAW

    • 1 THE RULE OF LAW AND THE IMPORTANCE OF PROCEDURE
      (pp. 3-31)
      JEREMY WALDRON

      The Rule of Law is one star in a constellation of ideals that dominate our political morality: the others are democracy, human rights, and economic freedom. We want societies to be democratic; we want them to respect human rights; we want them to organize their economies around free markets and private property to the extent that this can be done without seriously compromising social justice; and we want them to be governed in accordance with the Rule of Law. We want the Rule of Law for new societies—for newly emerging democracies, for example—and old societies alike, for national...

    • 2 THE LIMITS OF PROCESS
      (pp. 32-51)
      ROBIN WEST

      Jeremy Waldron’s claim, as I understand it, is that the “Rule of Law” requires not only that the various laws that govern us consist of general, knowable rules with which we can all comply—the so-called formal requirements of the Rule of Law often identified with Lon Fuller’s notorious King Rex and his eight ways to fail to make law¹—but also that those laws be applied in a way that acknowledges our intelligence, respects our dignity, and broadly treats each of us as a worthy equal when it imposes its censorial and punitive will upon us.² Waldron wants to...

    • 3 A SUBSTANTIVE CONCEPTION OF THE RULE OF LAW: NONARBITRARY TREATMENT AND THE LIMITS OF PROCEDURE
      (pp. 52-63)
      COREY BRETTSCHNEIDER

      In his contribution to this volume, Jeremy Waldron¹ distinguishes among three possible ways to conceive of the rule of law. First, we might think of the rule of law as defined by formal requirements. These include the requirements that laws must be public, noncontradictory, and nonretroactive, as Lon Fuller contends inThe Morality of Law.² Second, Waldron claims that the rule of law requires procedural guarantees in the courtroom, such as rights to an attorney, to an impartial judge, and to a fair trial. Procedural guarantees should be respected, writes Waldron, because they protect the dignity of individuals as “active...

    • 4 FOUR PUZZLES ABOUT THE RULE OF LAW: WHY, WHAT, WHERE? AND WHO CARES?
      (pp. 64-104)
      MARTIN KRYGIER

      It appears the time of the rule of law has come. In the past twenty or so years, the concept has gone from often-derided but more often ignored margins of public concerns to a somewhat hallowed, if also sometimes hollow, center of many of them. Once a quasi-technical term of interest only to lawyers and legal philosophers, it appears all over the globe these days, at ease in the company of such unassailably Good Things as democracy, equality, and justice.

      Rule of law is today an international hurrah term, on the lips of every development agency, offered as a support...

  6. PART II: MAINTAINING OR RESTORING THE RULE OF LAW AFTER SEPTEMBER 11, 2001

    • 5 SEPARATION OF POWERS AND THE NATIONAL SECURITY STATE
      (pp. 107-134)
      BENJAMIN A. KLEINERMAN

      Although the constitutional struggles of the Bush administration now seem to be in our proverbial “rearview mirror,” the constitutional questions that these struggles brought to the surface will surely remain. The essence of these struggles concerned the tenuous relationship between the rule of law and the preservation of national security. For the Bush administration, the preeminent importance of maintaining national security continually trumped concerns about the rule of law. And, if we are to be fair, this attitude made some sense for an administration that presided in its first year over an attack that killed so many citizens on domestic...

    • 6 JUDICIAL OVERSIGHT, JUSTICE, AND EXECUTIVE DISCRETION BOUNDED BY LAW
      (pp. 135-143)
      CURTIS A. BRADLEY

      In his interesting and provocative essay, “Separation of Powers and the National Security State,” Benjamin Kleinerman contrasts a purported nineteenth-century approach to separation of powers with a purported modern approach, and he suggests that it would be desirable to return to the earlier approach. He contends that under the nineteenth-century approach, the courts would not claim to have the final say about the national security powers of the national government and would instead simply decide individual rights questions, and, when they found a violation of rights, they would still leave to Congress the ability to reach its own conclusions about...

    • 7 THE INSTABILITY OF “EXECUTIVE DISCRETION”
      (pp. 144-155)
      LIONEL K. McPHERSON

      In the United States, terrorism—particularly terrorism that originates in the Muslim world—is widely believed to constitute an unprecedented menace. Post-9/11 doctrine holds that the country can no longer afford to rule out national security measures that many citizens in the past would have dismissed as disreputable. Such measures, we are told, might be necessary to preserve “our way of life” in “the age of terrorism,” even when they are at odds with basic tenets odds omestic or international law. If this necessity is seen as a perverse irony, the perversity is widely taken to reflect the fanatical evil...

    • 8 CONSTITUTIONAL THEORY, THE UNITARY EXECUTIVE, AND THE RULE OF LAW
      (pp. 156-166)
      SOTIRIOS A. BARBER and JAMES E. FLEMING

      This essay, part of a larger project, considers theories of the unitary executive and what the best of these theories imports for the rule of law and the future of constitutional theory as a whole. As we see it, at least in a sense that predates Bush administration apologist John Yoo,¹ the unitary executive is here to stay. Precisely because the American constitutional executive is a unitary power, President Obama can close Guantánamo unilaterally, without Congress’s leave. President Obama, on his own, can also revoke Bush’s executive orders regarding secrecy. He can renounce Bush administration memoranda attempting to justify torture,...

  7. PART III: BUILDING THE RULE OF LAW AFTER MILITARY INTERVENTIONS

    • 9 JUSTICE ON THE GROUND?: INTERNATIONAL CRIMINAL COURTS AND DOMESTIC RULE OF LAW BUILDING IN CONFLICT-AFFECTED SOCIETIES
      (pp. 169-223)
      JANE E. STROMSETH

      Building the rule of law after military interventions is a central preoccupation in many parts of the world today. From Afghanistan to Iraq, from Sierra Leone to East Timor to the Balkans, and elsewhere, national leaders and international actors are struggling to strengthen fragile governance structures, establish genuine security, improve justice systems, and build public confi dence and faith in these institutions in the midst or the aftermath of violent con-flict. As difficult as it is to build institutions crucial to the rule of law, including courts capable of functioning in ways that are procedurally fair and consistent with basic...

    • 10 IN DEFENSE OF IMPERIALISM? THE RULE OF LAW AND THE STATE-BUILIDING PROJECT
      (pp. 224-240)
      TOM GINSBURG

      The rule of law is not only a philosopher’s concept but a multibillion-dollar industry and the dominant ideal of our time. As a concept, its success is in part a result of its vagueness, as it is broad enough to incorporate an overlapping consensus among free marketers, human rights activists, and promoters of the regulatory state. Countries as diverse as China, Chad, and the Czech Republic agree on its virtue. At the same time, the idea of the rule of law has captured the policy-making imagination of the West and has become our modern mission civilisatrice.¹ The burst of activity...

    • 11 BYSTANDERS, THE RULE OF LAW, AND CRIMINAL TRIALS
      (pp. 241-264)
      LARRY MAY

      In discussions about the rule of law in transitional justice, whether in domestic or international contexts, the focus is normally on those who are perpetrators. The puzzle is to figure out how to get those who have been perpetrators or those who might become so instead to conform to the rule of law so that a lasting peace can be restored. But there should also be a strong focus on those who have been or who might become mere bystanders to atrocities. In building or restoring the rule of law, it is the bystanders who are often overlooked, and yet...

    • 12 MIGHT STILL DISTORTS RIGHT: PERILS OF THE RULE OF LAW PROJECT
      (pp. 265-292)
      RICHARD W. MILLER

      These days, when intervening governments, separately or in coalition, take over a country and reshape its governance, they say that their goal is the establishment of the rule of law. In this project, they are helped by cadres of civil servants, lawyers, academics, think-tankers, and members of NGOs, often under UN sponsorship, who constitute an international network of planners and implementers seeking to advance a goal that they, too, characterize as the rule of law.

      Perhaps the choices actually made in the projects so described do not track the weight of evidence as to what would advance the rule of...

  8. INDEX
    (pp. 293-298)